Two relatively recent federal cases should put benefits attorneys on notice that courts may require plaintiffs who claim disability benefits based on cognitive impairment to present objective evidence of brain function using neuroimaging technology.
Functional Magnetic Resonance Imaging (fMRI) and other neuroimaging technologies involve making a series of digital brain images to measure changes in blood levels in different regions of the brain over time. Visually, fMRI depicts small, localized changes in brain blood flow as colorful hot spots mapped onto a three-dimensional (or flattened two-dimensional) digital image of the brain’s surface. Cognitive neuroscience researchers interpret these digital images to make inferences about brain function.
Sims v. Barnhart and Van Valen v. Employee Welfare Benefits Comm. Northrop Grumman Corp appear to signal a sea change in what objective evidence courts will require to establish a disability benefits claim based on cognitive impairment. Developments in neuroimaging technologies such as fMRI can provide objective evidence of impairment that plan administrators, insurance carriers and, ultimately, reviewing courts may demand in addition to a physician’s diagnosis based on the patient’s self-reported symptoms and the results of traditional medical examinations.
Sims: Denial of social security benefits
In Sims, the 7th Circuit ruled that substantial evidence supported an Administrative Law Judge’s (ALJ) decision to deny Social Security benefits to an applicant who claimed she was suffered from somatoform disorder (also known as conversion disorder) that caused her to suffer tunnel vision. The plaintiff had provided evidence that her doctors administered several vision tests, all of which indicated that she had tunnel vision. But Judge Posner, writing for the court, explained that these test results were “not decisive.”
Posner explained that based on his review of the academic literature, the ALJ who denied Sims’s benefits claim was correct to require additional evidence. Specifically, Posner observed that an article published in the Journal of Neuropsychiatry and Clinical Neurosciences “indicated that brain scans may be able to distinguish real from feigned symptoms of conversion disorder…and Sims had not had a brain scan.” Based on this failure, the ALJ properly rejected Sims’s claim for Social Security benefits.
Van Valen: Denial of long-term disability benefits under an ERISA plan
In Van Valen, the plaintiff claimed that she suffered from Chronic Fatigue Syndrome (CFS) and sought to recover long-term disability benefits under an Employee Retirement Income Security Act (ERISA) plan insured through a group policy.
The defendant, the benefits committee for the plaintiff’s former employer, moved for summary judgment, arguing that even if the CFS diagnosis was proper, it was reasonable to deny the claim because the plaintiff had “presented no objective evidence of functional impairment to support her claim of total disability.” The court agreed.
Like the Sims court, the Van Valen court looked to the scientific literature on cognitive neuroscience to determine what objective evidence was required. The court observed that multiple academic articles in this field had demonstrated that fMRI tests could “objectively show decreased cognitive performance in patients with CFS.” The plaintiff could have buttressed her claim by providing this objective fMRI evidence, but she had failed to do so. And this failure, the court held, was fatal to her claim for ERISA benefits.
Benefits attorneys can use Sims and Van Valen to better defend their clients
Sims and Van Valen may provide powerful new arguments for defense counsel in disability benefits litigation. First, if the scientific literature demonstrates that fMRI scans could show objective evidence of a claimant’s purported cognitive impairment, and the claimant failed to provide that evidence to buttress his claim, your client may reasonably deny the claim. Second, if the claimant challenges the denial in court, the absence of fMRI evidence in the record may entitle your client to summary judgment. Of course, the Sims and Van Valen courts presumed, without needing to determine, that had either party introduced the fMRI evidence, it would have been admissible under the Federal Rules of Evidence. Suffice it to say that this is not a foregone conclusion. But Sims and Van Valen demonstrate that, for at least some federal courts, not only is this evidence admissible, it also may be necessary for the plaintiff to win.